For Office of Special Counsel, turnaround brings struggle

Spike in complaints stresses staff

Sep. 10, 2013 - 06:00AM
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Carolyn Lerner, head of the Office of Special Counsel, said her staff has not grown to match increases in the workload. (Colin Kelly/Staff)

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At the Office of Special Counsel, business is booming.

And that’s become a problem for the government’s chief enforcer of legal safeguards for federal employees who report waste and abuse.

Last year, complaints alleging whistleblower reprisal and other prohibited personnel actions surged by 15 percent to almost 3,000 and are on track to hit that benchmark again this year. But OSC’s staff of 110 has remained roughly flat in recent years, despite Congress’ loading the agency with new responsibilities.

Without more money, “I’m not going to sugarcoat it —it’s going to be very tough,” OSC Director Carolyn Lerner said in a recent interview. Though she’s optimistic lawmakers will eventually agree to a modest increase, the budget trends are not promising: In March, the agency laid off 10 term employees, and all others suffered three days of furloughs due to the sequester.

With 90 percent of its budget consumed by salaries, benefits and rent, OSC may offer an extreme example of the pressures that most agencies are facing. It also provides a case study in adaptive management.

Its paid staff is currently augmented by about 33 interns and presidential management fellows, who are either unpaid or have their salaries covered by other agencies. To house many of them, Lerner cleaned out the law library at the agency’s headquarters in downtown Washington. And to cut down on time-consuming reviews, the agency is turning more to mediation as a means of settling complaints.

Pressure builds

But strains are showing. In 2008, OSC processed 95 percent of its cases within eight months; this year, the figure has dropped to 85 percent. If the backlog persists, some cases could be directed to the Merit Systems Protection Board (MSPB), which is struggling to manage more than 30,000 furlough appeals, said John Mahoney, an employment lawyer with the firm Tully Rinckey.

By law, federal employees can take prohibited personnel practice complaints to the MSPB if the special counsel’s office fails to act on them within 120 days, Mahoney said. To him and other attorneys who work with OSC, the agency’s difficulties stem in part from a renewed sense of purposes.

A little more than two years into her five-year term, Lerner is OSC’s first permanent director since Scott Bloch was forced out in late 2008 following a stormy tenure that included allegations of retaliation against employees who challenged his policies. While Bloch denied the reprisal charges, he was sentenced in June to two years probation and a $5,000 fine after pleading guilty to having files erased from his government computer.

Since Lerner took over, “I think there is more confidence in the competence” of the special counsel’s office, Mahoney said.

In its latest budget request, the agency highlights its work on behalf of whisteblowers at Dover Air Force Base, Del., who were punished after challenging the mistreatment of remains of service members killed in Iraq. Overall, the number of favorable outcomes in whistleblower cases jumped 75 percent last year, according to the request.

In Mahoney’s view, those kinds of improvements contributed to lawmakers’ willingness to boost the agency’s authority last fall through passage of the Whistleblower Protection Enhancement Act. The act, for example, makes it easier for OSC to pursue disciplinary action against federal officials found to have retaliated illegally against whistleblowers.

Tom Devine, legal director for the Government Accountability Project, a whistleblower advocacy group, said OSC is being squeezed.

“They’ve been given drastically increased duties, and they have less money to carry them out,” Devine said.

Nonetheless, Devine credits OSC for a “spunky” approach in responding to its predicament.

“They have been willing to take on the hardest issues, they’ve been willing to litigate on behalf of the whistleblower, they seek out and listen to stakeholder voices,” he said.

Even when there have been disagreements, he added, the agency has responded constructively rather than “telling us we were wrong.”